Coach Bus Driver Found Guilty of Violating the New York City Right of Way Law – MTA Bus Driver and Sanitation Worker Face Similar Charges – an Analysis of the Right of Way Law – What You Need to Know

The September conviction of Dave Lewis who was a driver of a coach bus which tragically ran over and killed Dan Hanegby in a Manhattan traffic accident, puts operators of buses, trucks and cars on notice that the violation of NYC traffic laws can result in serious criminal penalties including incarceration.

If you violate the right of way law in New York City– and a pedestrian or rider of a bike is injured, –beware- you may end up with a permanent criminal record.

Lewis, a coach bus driver was convicted of failing to give the right of way to Mr. Hanegby who was riding a CitiBike on a New York City street https://www.nytimes.com/2018/10/01/nyregion/citi-bike-death-bus-driver.html. Another arrest  this September of an MTA bus driver who it is alleged caused the death of an elderly pedestrian who apparently had the  right of way,  https://nypost.com/2018/09/06/bus-driver-busted-for-fatally-striking-elderly-woman-in-crosswalk and this weeks arrest of  a driver of a New York City Sanitation Department truck http://gothamist.com/2018/10/12/dsny_fatality_arrest_brooklyn.php when the driver allegedly caused the death of  a pedestrian who was crossing a street in a Brooklyn cross walk, highlights  the aggressive position which the City is taking for violations of the right of way law.

While these traffic infractions have previously been seen by drivers to result in a simple traffic ticket or in the case where someone is injured, at most a civil lawsuit, active enforcement of this law and arrest of offenders, sends an important message to drivers that such dangerous conduct will no longer be countenanced by police and prosecutors.

Even if There Are No Injury to Others, Mere Violation of the Right of Way Law Can Land You in Jail

The first such scenario addresses a situation where there is no injury is caused by the driver’s violation.

The law provides in pertinent part as follows:

“§19-190 Right of way. a. Except as provided in subdivision b of this section, any driver of a motor vehicle who fails to yield to a pedestrian or person riding a bicycle when such pedestrian or person has the right of way shall be guilty of a traffic infraction, which shall be punishable by a fine of not more than fifty dollars or imprisonment for not more than fifteen days or both such fine and imprisonment. In addition to or as an alternative to such penalty, such driver shall be subject to a civil penalty of not more than one hundred dollars……” (emphasis added)

Under this subsection of the law, if a driver fails to yield the right of way to a pedestrian or person riding a bike and no injury occurs, a penalty of fifty dollars may be imposed. The dramatic element of this provision of the law is the possible imposition of a penalty of imprisonment for as much as fifteen days for what this law deems a traffic infraction.

The law in effect allows a police officer the discretion of putting any driver who violates the law in handcuffs and may result in the driver of the motor vehicle spending as much as 15 days in Rikers Island – this penalty may be imposed for failing to give the right of way to a pedestrian or driver of a bike.

Though this penalty falls short of resulting in a permanent criminal record, the penalty of deprivation of liberty is very serious and drivers should take serious notice.

If You Violate This Law and Cause an Injury to a Rider of a Bike or Pedestrian, You May Find Yourself Charged With a Crime and Face Real Jail Time

The right of way law goes on to address situations where the rider of a bike or pedestrian suffers injury as a result of the offending driver’s failure to give the right of way.

The law provides in pertinent part as follows:

“b. Except as provided in subdivision c of this section, any driver of a motor vehicle who violates subdivision a of this section and whose motor vehicle causes contact with a pedestrian or person riding a bicycle and thereby causes physical injury, shall be guilty of a misdemeanor, which shall be punishable by a fine of not more than two hundred fifty dollars, or imprisonment for not more than thirty days or both such fine and imprisonment. In addition to or as an alternative to such penalty, such driver shall also be subject to a civil penalty of not more than two hundred fifty dollars which may be recovered in a proceeding before the environmental control board. For purposes of this section, “physical injury” shall have the same meaning as in section 10.00 of the penal law.” (emphasis added)

This is a criminal sanction. The driver may be charged with committing a misdemeanor for failing to yield the right of way and causing physical injury to the pedestrian or rider of a bicycle. The imprisonment may be for as much as thirty (30) days in jail and/or imposition of a fine of as much as two hundred and fifty dollars ($250). The driver may even face an additional civil penalty of yet an additional two hundred and fifty dollars ($250) which may be collected in a proceeding before the environmental control board. Conviction means that you will have a criminal record.

The law further provides an additional element that must be proved in order to be in violation of this law. Subdivision ( c ) provides that the drivers actions must be the result of the failure to exercise “due care”.

Subdivision ( c ) provides in pertinent part as follows:

“c. It shall not be a violation of this section if the failure to yield and/or physical injury was not caused by the driver’s failure to exercise due care.”

In other words it appears that in order to be in violation of this law it must be proven that the driver not only failed to provide the right of way to the pedestrian but also that such failure was caused by a failure to exercise due care.

In order to effectively proceed against offending drivers, the police appear to be charging violators who cause injury both with a violation of the right of way law (19-190 (b) of the Administrative Code) and with a separate violation, of failing to act with due care.

Is Due Care the Same as Reasonable Care?

Is due care the legal equivalent of the reasonable man standard required for a finding of negligence? The answer is important to understanding this law and implication for any future action seeking damages.

The generally accepted legal definition is

“Due care refers to the effort made by an ordinarily prudent or reasonable party to avoid harm to another, taking the circumstances into account.” https://definitions.uslegal.com/d/due-care/

Therefore the two terms appear to be equivalent.

The Reasonable Man Standard

This casts a light upon the law underpinning the Lewis case. That accident resulted in the death of Dan Hanegby who was crushed under the wheels of the bus Lewis was driving.

Apparently, the drivers defense at trial was to cast blame on the deceased conduct in his operation of the bike in order to bolster what appears to be his own defense that he exercised due care.  That he acted reasonably under the circumstances. The court did not agree. Lewis now faces 30 days in jail as well as other penalties, potential civil liability as well as a criminal record.

Future Civil Litigation

This analysis leads to the legal conclusion that in the event of future civil litigation arising from the wrongful death and pain and suffering of the deceased that the central issue of a negligence case will likely be resolved as a matter of law as the court has effectively already decided that the driver of the coach bus had failed to exercise “due care” which is the equivalent of the failure to exercise reasonable care.

That element having been finally decided against the driver Lewis, and it being a criminal case as distinguished from a traffic infraction, it is likely that the driver will be prevented from litigating this issue in the civil damage trial, under the legal principal known as res judicata.

Res judicata is a Latin term which means “a matter judged”. In other words once the issue of whether the driver of the bus exercised due care has been decided against him in one court through the use of the same or a greater burden of proof, the issue cannot be re-litigated by that party in a subsequent action.

It is therefore likely that the finding of violation of the right of way law will result in a summary judgement finding in any civil litigation – and that Lewis will likely be determined to be legally negligent and answerable for civil damages in any future civil litigation.

This case should stand as an admonition to drivers to obey this very impactful law which was designed to protect pedestrians and bike riders in the City of New York.

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